Director of Public Prosecutions v Olsen, Braydon

[2013] VCC 379

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-12-02104

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRAYDON OLSEN

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Bendigo (Sitting in Melbourne)
DATE OF HEARING:	25 March 2013
DATE OF SENTENCE:	27 March 2013
CASE MAY BE CITED AS:	DPP v Olsen, Braydon
MEDIUM NEUTRAL CITATION:	[2013] VCC 379

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence
Legislation Cited:    
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. D’Arcy	Office of Public Prosecutions
For the Accused	Mr L. Docherty	Stuthridge Legal

HER HONOUR:

1       Braydon Olsen, you have pleaded guilty to one charge of armed robbery and one charge of theft.  The maximum penalty applicable to the offence of armed robbery is 25 years' imprisonment and theft, ten years' imprisonment.  These offences occurred on 29 September 2012.

2       It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious.

3       You also have a prior criminal history involving dishonesty offences, amongst other offences, between 2009 and August 2012.  I note, however, you do not have any prior court appearances for armed robbery.  It would appear you have not previously served a term of imprisonment.

4       Unfortunately, this offending breached a Community Corrections Order imposed on 28 August 2012, one month earlier.  No doubt, you were told by the magistrate the implications of further offending, in particular while on the order.  You are not before me for sentence in relation to the breach of that Community Corrections Order.  However, it is concerning that the offending that is before me occurred whilst you were subject to that order.

5       I turn to a summary of your offending.  At the time of this offending you were 20 years of age and are 20 at time of sentence.

6       At approximately 6.30pm on 29 September 2012, you attended the Liquorland Store in Bendigo.  Samara Budds was working alone in the store.  You asked if they stocked "Elevate" drinks.  Ms Budd said you should try First Choice Liquor and you left the store.

7       At approximately 7.28pm that same day you went to Coles Supermarket and asked a customer where the kitchen aisle was.  You then selected 2x20cm "Santoku" kitchen knives and secreted them in your shorts.  You walked to the change rooms in Coles and checked the knives did not have security tags before concealing them and leaving the store (Charge 1, theft).

8       You walked to a car park and removed the knives from their packaging and put them in your shorts.

9       You then returned to Liquorland and selected a 4-pack of Vodka Cruisers. You then went to the victim at the counter.  She asked you for ID and began to process the sale.  When she asked for your money, you removed one of the knives and said "Give me your money".  The victim initially said no, but then pressed the void button on the register, which set off a "hold-up" alarm.  You walked around the counter, stood near the victim and reached into the drawer and took money from the register.  You then moved to the second register and said "What about this one?" The victim moved to the second register and opened it and you took money from that register also.  

10      As you left, you discarded your T-shirt and the knives.  You were arrested and interviewed on 29 September 2012 and made a largely no comment record of interview, which of course was your right.

11      At the time of your plea hearing, you had spent 177 days in custody by way of pre-sentence detention.  Apart from another earlier period when you had been on remand, this was only your second time in custody.

12      You admitted a number of prior court appearances before me but I note, as I said, none of those relate to offences of armed robbery, although some do relate to the offences of dishonesty and some low level violent offences.

13      Nevertheless, despite your young age, being 20 at the time of sentence, you have amassed a significant criminal history commencing in 2009 and most recently with an appearance in court on 28 August 2012.

14      You instructed Mr Docherty, who appeared on your behalf at your plea hearing, that this day was AFL Grand Final day.  You had been drinking alcohol throughout the day and also had consumed ice.  You had an argument with your mother and partner in relation to your alcohol and drug consumption.  You met up with others and you instructed the three of you came up with the idea of doing an armed robbery.

15      No other person has been charged in relation to the offences before me and therefore principles of parity do not apply when sentencing you (see R v Taudevin (1996) 2 VR 402).

16      The knife you used in the armed robbery had been stolen from the adjoining supermarket.  You did not use any disguise, and as such there is an absence of that aggravating feature in your offending.

17      Mr Docherty described your offending behaviour as amateurish and unsophisticated.  However, as I discussed with him, you did achieve your intention in that you obtained money as a result of this armed robbery.  I have no doubt Ms Budds was scared, being confronted by you with a knife.  I accept, however, you did not hold the knife at her or towards her.

18      You were arrested shortly after you left the scene and, as I understand it, were wearing distinctive shorts.

19      You have pleaded guilty to the charges before me and you are entitled to have that fact taken into account in your favour when sentencing, and I do so.  Further, I accept your plea of guilty was entered at the earliest possible opportunity, at the committal mention on 14 November 2012.  The fact of your pleas of guilty and the early stage at which they were entered is relevant in mitigation of your sentence.

20      Mr Docherty also referred to your age of 20, and the principles in R v Mills [1998] 4 VR 235. As such, your rehabilitation was an important sentencing consideration and that is so. However, I do note that you breached a Community Corrections Order by the commission of this offending, further the current offending involved serious offences, in particular the armed robbery, also that you have a prior criminal history, albeit not for offending of armed robbery. It is clear that the application of Mills is not of automatic or usual application and much depends on the circumstances, not only of your offence but also of the offender (see DPP v Lawrence (2004) 10 VR 125).

21      Regarding your rehabilitation, I note you have recently been receiving counselling from Mr McGoven, to whom I shall shortly refer.

22      You suffer with severe asthma and instructed Mr Docherty that in the last two to three weeks, you had spent some time in St Vincent’s Hospital in intensive care as a result.  You have apparently had severe asthma for your whole life.

23      Turning to your background and history, your parents separated when you were approximately 4 years of age and you described not having any real relationship with your father.

24      You struggled at school due to ADHD and you were taking medication at various stages.

25      Mr Docherty submitted you could pinpoint the time when your life disintegrated.  When you were approximately 14 you were sexually assaulted at the family fish and chip shop.  You reported the matter to police but ultimately at trial the alleged perpetrator was found not guilty.  You were required to give evidence at that hearing.  A subsequent victim of crime claim, however, was successful.

26      Since that sexual assault, you struggled and had been binge drinking alcohol and also taking drugs.  That led to your first court appearance in April of 2009 in the Children’s Court.  You described yourself as being anti-authoritarian, blaming the police because the offender was not convicted at trial.

27      Mr Docherty submitted you were yet to deal with that sexual abuse.  As a result, you used cannabis and then moved to amphetamines and other substances to assist you to deal with it.

28      Your first appearance before the court was when you were 16 or 17 years of age and as he stated, you have thereafter had a “somewhat regular appearance”.  He did note as do I, as I previously said, you have not been to court for an offence of armed robbery.

29      I was provided with two reports which provided background information in relation to you.  There was a report from Dr Simon Kennedy, Psychiatrist, dated 25 February 2013, who assessed you on 12 February 2013.  At the time of interview, you had been on remand since September 2012.

30      You appeared to him to be functioning in the borderline range of intellectual abilities with no obvious mental health problems.

31      Regarding your background and history, you stated you had, prior to your arrest, been living with your fiancée.  You grew up with your mother and step-fathers.  You knew very little about your father and had not seen him since you were 4 years of age.  You were living with your partner and your mother, a 6 month old son, Ryan, and step-daughter, Brooklyn, 3 years of age.

32      You spoke of your early years as being difficult.  Your mother was in and out of relationships typified by domestic violence.  In your youth, you had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin and other medications.

33      You were taking dexamphetamines up until about a month before this offending.  You said you began to drink after you went off the medication. You have had problems with alcohol and dexamphetamines in the past.

34      You also described to Dr Kennedy the incident of sexual assault when you were 14, which led to significant conflict for you and problems when you were at school.  You had several sessions with Bendigo Community Health Centre and there was a victims of crime report.

35      Whilst you had ongoing treatment in the past with dexamphetamines, you were not taking that medication in prison.  You had been prescribed Amytriptaline whilst in prison, a mild antidepressant to assist with sleeping.

36      You have had problems with drugs and alcohol in the past, you said, to which I have previously referred in these sentencing remarks.  You began using drugs when you were about 17 and on the night of this offending were using drugs, as I have previously stated.  You said you had not used methamphetamine before that night.

37      Your offending occurred against a background of cannabis, alcohol and methamphetamine abuse on that day.

38      Cognitive evaluation conducted by Dr Kennedy showed your functioning was between the extremely low and borderline ranges of intellectual abilities.

39      You presented as thoughtful, despite those difficulties, and you had remorse for the victim of your offending.

40      Your plans were realistic, in Dr Kennedy’s opinion, in that you hoped to obtain work and return eventually to live with your girlfriend and your mother.

41      Turning to a violence risk assessment, the results indicated you were functioning in the moderate risk range, although that risk was increased by you alcohol or substance abuse.  In the opinion of Dr Kennedy, you required treatment for substance abuse.

42      You did not have any evidence of an antisocial personality disorder. You required ongoing psychiatric consultation to address your ADHD with the possibility of medication.

43      I was also provided with a report from Nathan McGoven, Provisional Psychiatrist with the Youth Support and Advocacy Service in Bendigo, dated 25 October 2012.  Mr McGoven thought you may be suffering from Post Traumatic Stress Disorder, specifically as a result of the sexual assault in your past.  He was, however, unable to formally diagnose that condition and urged a further assessment.

44      Mr McGoven had been working closely with you for several months prior to your recent incarceration and had addressed a number of issues relating to your substance use, relationship issues, anger management and trauma symptoms related to the sexual abuse in your past.  You reported that prior to the sexual assault, you never engaged or participated in illegal activities nor used any substances.  However, after undertaking the legal processes to prosecute your abuser, you reported “no justice”.  In the opinion of Mr McGoven, this result contributed highly to your past attempts to mask your anxiety symptoms by obtaining relief through use of various substances, both legal and illegal.

45      It appeared to him you had not been a threat to society prior to that abuse having occurred.  You described to Mr McGoven that two weeks prior to the offending before me, you again had come into contact with the perpetrator of the earlier trauma.  Following that contact, Mr McGoven considered there were a number of re-experiencing symptoms that you had been suppressing and/or avoiding which were then triggered, having a significant impact on your behaviour leading up to this offending.

46      Mr McGoven outlined a number of your symptoms of trauma which he observed in consultations with you.  These are set out at pages 2, 3, 4 and 5 of his report.  Some matters referred to include your reporting of ongoing intrusive and distressing recollections of the earlier sexual assault, including images, thoughts and perceptions.  You frequently had nightmares and distressing dreams associated with the event.  When discussing the events, you displayed anxiety and extreme hyper vigilance.  Your fiancée said you had difficulty sleeping.

47      You tended in the past to avoid all discussion with anyone, apart from your mother, until you met Danielle, in relation to the abuse.  Prior to your relationship with Danielle, in your contact with Mr McGoven you had shown very little interest in participation in any positive activities of significance.  There had been some improvement in a reduction in your substance abuse overall since you met Danielle.

48      In the opinion of Mr McGoven, you required assessment by a clinical psychologist and to develop a treatment plan, whether or not you were incarcerated as a result of this offending.

49      Mr Docherty submitted he was relying more on the contents of the report of Dr Kennedy.  However, noted Mr McGoven’s opinion you had all the hallmarks of Post Traumatic Stress Disorder suffering significant difficulties after the sexual assault court case.  In the opinion of Mr McGoven, you required further assessment and treatment.

50      Specifically addressing the report of Dr Kennedy, Mr Docherty submitted that Dr Kennedy concluded you were in the extremely low to borderline range of intellectual ability. You had expressed empathy and remorse for your offending to Dr Kennedy. In his opinion, your dependence on alcohol and substances was one of the greatest obstacles to your successful rehabilitation.  He did, however, not find any evidence of antisocial personality disorder, rather that you required treatment and counselling directed to your alcohol and drug use.

51      In Dr Kennedy’s opinion, if those issues were dealt with, the risk of you re-offending would be lowered and your rehabilitation prospects greater.  Ultimately, it is going to be a matter for you to address those issues when you are on parole, if you are to avoid coming back to court and going back to gaol in the future.

52      Mr Docherty conceded that the victim of your offending of the armed robbery was often referred to in the courts as a “soft target”, and agreed general deterrence was an important sentencing consideration.  Further, he conceded there needed to be specific deterrence when sentencing you given your prior criminal history.

53      He urged that I consider you are still a young offender and had pleaded guilty at the earliest opportunity to these charges.  I am aware of both those aspects.

54      Mr D'Arcy, on behalf of the prosecution, submitted the offences before the court were serious matters and an immediate term of imprisonment was the only appropriate disposition, and he provided the range considered appropriate by the prosecution.

55      Mr D'Arcy conceded that the range had been from a prosecutor who had not had access to the material provided to me by Mr Docherty.  Your intellectual quotient was unknown, apparently, to the prosecutor providing the range at the time.  Mr D'Arcy did not take issue that you suffered with severe asthma, which had necessitated your attendance recently in hospital for a significant period of time.

56      There was a Victim Impact Statement tendered in this matter.  The victim of your offending has suffered considerably as a result.  Ms Samantha Budds stated she had flashbacks of your offending, had missed a day off work for which she was not paid, and has been on medication since your offending for anxiety and sleeplessness.  She had also had contact with a psychologist.

57 The effect of offending upon a victim is a relevant sentencing consideration (See s.5 Sentencing Act 1991). I am conscious, of course, I must not allow the effects upon a victim to swamp the sentencing process.

58      As well as matters personal to you, to which I have referred, including your prospects of rehabilitation of which I have guarded optimism, I must also take into account such matters as general deterrence, which is of considerable importance in a case such as this.

59      Specific deterrence is also relevant, as you have a significant number of prior court appearances and this offending before me occurred while you were on a Community Corrections Order.

60      I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending.

61      I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

62      On Charge 1 you are convicted and sentenced to 14 months' imprisonment.  

63      On Charge 2 you are convicted and sentenced to 2 years and 6 months' imprisonment.

64      Charge 2 is the base sentence, and I direct that 6 months of Charge 1 be served cumulatively upon Charge 2.

65      That results in a total effective sentence of 3 years' imprisonment, and I direct  you serve a period of 2 years before you are eligible for parole.

66 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of those two offences following jury verdict, I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years and 6 months.

67 I declare that pursuant to s.18(4) Sentencing Act 1991, you have spent 178 days in custody by way of pre-sentence detention, up to and including yesterday, 26 March 2013, and I direct that this be entered into the records of the court.

68      The prosecution made application for the retention of a forensic sample.  This was not opposed by counsel on your behalf and I make the order in the terms sought, based on the seriousness of your offending and your prior criminal history.

69      The prosecution also made application for a disposal order.  This was not opposed by counsel on your behalf, and I make the order in the terms sought.

70      As far as I am aware, there were no other orders sought.

71      Is the PSD right?

72      MR D'ARCY:  Yes, Your Honour.

73      HER HONOUR:  No problems with any of the figures?  They are pretty straight forward.

74      ASSOCIATE:  There was a forfeiture order - - -

75      MR D'ARCY:  Yes, I thought there was a forfeiture order, for the knives?

76      HER HONOUR:  What one?  Was there a forfeiture order as well?

77      MR D'ARCY:  Yes there was, Your Honour.

78      HER HONOUR:  All right.  There was a forfeiture order also provided - yes, I have signed that so it must have been agreed at the time.  I take it you know what that is all about do you, Mr Docherty?

79      MR DOCHERTY:  I beg your pardon, Your Honour?

80      ASSOCIATE:  (Indistinct), Your Honour.

81      HER HONOUR:  For the money, was it?  The money, yes.  Yes, $364.  All right, are you aware of that?

82      MR DOCHERTY:  I'm sorry, Your Honour, I missed that.

83      ASSOCIATE:  The forfeiture order.

84      HER HONOUR:  You are aware of that one?

85      MR DOCHERTY:  Yes, yes.

86      HER HONOUR:  Yes, I had you marked as the other two but I don't know whether there was also an application for forfeiture.  Counsel on your behalf consented to the making of that order.  I make the order in the terms sought.  Apart from that, was there anything else?

87      MR D'ARCY:  No, Your Honour.

88      MR DOCHERTY:  No, Your Honour.

89      HER HONOUR:  Thank you.  Can you remove Mr Olson, thank you very much.

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